SSDL Pty Ltd (Migration) [2024] AATA 3135 (13 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: SSDL Pty Ltd
REPRESENTATIVE: Ms Wei Wen Phang
CASE NUMBER: 2205656
HOME AFFAIRS REFERENCE(S): BCC2021/357879 BCC2021357879
MEMBER:Peter Emmerton
DATE:13 August 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal sets aside the decision not to approve the nomination and substitutes a decision that the nomination is approved.
Statement made on 13 August 2024 at 11:14am
CATCHWORDS
MIGRATION – Employer Nomination – approval of nominated position – Medium-term stream – Computer Network and Systems Engineer – labour market testing conditions – process and manner of the market testing – advertising across 3 sites – form and period of advertising – decision under review set asideLEGISLATION
Migration Act 1958 (Cth), ss 140GB, 140GBAMigration Regulations 1994 (Cth), rr 2.72, 2.73
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 March 2022 to refuse to approve the applicant’s nomination under s 140GB of the Migration Act 1958 (Cth) (the Act) and reg 2.72 of the Migration Regulations 1994 (Cth) (the Regulations).
The applicant applied for approval on 10 March 2021. A nomination of an occupation for a Subclass 482 visa is made under s 140GB of the Act and reg 2.73 of the Regulations. The occupation must be nominated for a Subclass 482 visa in one of three alternative streams: the Short-term stream, the Medium-term stream or the Labour Agreement stream. Regulation 2.72 prescribes general and stream-specific criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. Additional criteria are specified in s 140GBA. In this case, the occupation is nominated for a Subclass 482 visa in the Medium-term stream.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy 140GBA of the Migration Act because they were not satisfied the applicant provided evidence to show they could satisfy the labour market testing conditions.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicant is an approved work sponsor and meets the requirements in reg 2.72: s 140GB(2). The applicant must also have paid any nomination training contribution charge in relation to the nomination for which they are liable. In addition, the labour market testing requirements in s 140GBA must be met.
The Tribunal has read and carefully considered the evidence previously presented to the delegate and the Department.
The Tribunal has read and carefully considered the evidence…
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CaseChat Overview and Summary
The Tribunal was required to determine if SSDL Pty Ltd, as the nominator, had complied with the process set out in regulation 2.73 of the Migration Regulations 1994, whether there was any adverse information known to Immigration, if SSDL Pty Ltd was a standard business sponsor, and if any debts under section 140ZO of the Act had been paid. Additionally, the Tribunal had to ascertain if the nominated occupation corresponded to a specified occupation in the relevant instrument and if it applied to the nominee. The Tribunal also considered the remuneration offered, noting that it exceeded the Temporary Skilled Migration Income Threshold (TISMIT).
The Tribunal's reasoning focused on assessing each of the applicable criteria under regulation 2.72. It found that the nomination process was followed, no adverse information was presented, SSDL Pty Ltd was a standard business sponsor with an active sponsorship until May 2026, and no relevant debts were outstanding. The nominated occupation, Computer Network and Systems Engineer (ANZSCO 263111), was found to be specified in the relevant instrument (LIN 19/048) and applicable to the nominee. The Tribunal also noted that the nominee was not a holder of a Subclass 457 or 482 visa, thus certain specific requirements did not apply, and confirmed that the nominee met English language requirements.
Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision approving the nomination.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
For these reasons the requirements of reg 2.72(3) are met.No adverse information known to Immigration Regulation 2.72(4) requires that either: there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or it is reasonable to disregard such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in regs 1.13A and 1.13B. Based on the evidence in the Nomination form, the Tribunal is satisfied the nominator has certified in writing they had not engaged in conduct, in relation to the nomination, that constitutes a contravention of the Act. No evidence has been brought before the Tribunal to the contrary nor identified by the Department. For these reasons the requirements of reg 2.72(4) are met.Nominator is a standard business sponsor Regulation 2.72(5) requires that the person making a nomination is a standard business sponsor. Based on the evidence in the 482-visa nomination form and Departmental records viewed by the Tribunal, the Tribunal is satisfied the nominator SSDL Pty Ltd is a Standard Business Sponsor, (SBS). Their current SBS expires 9 May 2026. For these reasons the requirements of reg 2.72(5) are met.Payment of debt mentioned in s 140ZO Regulation 2.72(5A) requires that the person has paid in full any debt mentioned in s 140ZO of the Act. There is no evidence placed before the Tribunal of any debt mentioned in s 140ZO of the Act that is unpaid. For these reasons the requirements of reg 2.72(5A) are met.Requirements for existing Subclass 457 or Subclass 482 visa holders The criteria for approval of a nomination contain several requirements if a Subclass 457 or Subclass 482 visa holder is identified as the person to work in the nominated position. In these cases:·the applicant must list on the nomination each person granted a Subclass 457 or Subclass 482 visa as a family member of the nominee, unless it is reasonable in the circumstances not to do so: reg 2.72(6)(a) and reg 2.72(7);·if the Minister requested evidence that the nominee satisfies the language test requirements, the applicant has provided evidence that the nominee satisfies the language test requirements specified for cl 482.223 (if the nomination is in the Short-term stream) or cl 482.232 (if the nomination is in the Medium-term stream): reg 2.72(14). As the nominee is not the holder of a Subclass 457 or Subclass 482 visa, the requirements of reg 2.72(6), (7) and reg 2.72(14) do not apply. It is however noted that the language test requirements are met as evidenced by provision of the IELTS test results dated 22 October 2019.Specified occupation Regulation 2.72(8) requires that the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument in force at the time the nomination is made, that is, LIN 19/048. The occupation must also apply to the nominee in accordance with the instrument. Based on the evidence, the nominated occupation and its 6-digit code correspond to an occupation and 6-digit code specified in the instrument (LIN 19/048). No relevant inapplicability conditions were specified in the relevant instrument. Further, the evidence contained in the Department file, has satisfied the Tribunal the occupation is applicable to the person identified in the nomination.